Mandel v. Buttles

Berry, J. Plaintiff, through an agent, sold to defendants certain quantities of furniture varnish and staining materials. The testimony of defendants Buttles and Herrick was to the effect that, at the time of the sale, the plaintiff’s agent warranted the goods purchased to be of the best quality, adding, according to Buttles, that if they did not find them so, they need not keep them, and, according to Herrick, that if they did not find them so, they need not pay for them. Between these two versions of the added stipulation, we think there is no essential difference, the meaning being that if the defendants did not find the goods [397] to be as warranted, they might rescind the contract of sale, by returning the goods. In the view which we take of this case, it will not be necessary to enter into an examination of the conflicting authorities, for the purpose of laying down any general rule as to the right of the buyer of goods warranted to return the same, if the warranty is found to be false, in cases where there is no stipulation for a return. Neither will it be necessary to enquire whether, as respects this right, there is any distinction between contracts executed and executory. The plaintiff contends that the effect of the stipulation for the rescission of the contract and return of the property was to make such rescission and return defendants’ exclusive remedy, in case the goods purchased failed to correspond with the warranty. Or, in other words, that the effect of the stipulation referred to, was, so far as the question of remedy was concerned, to rescind and vacate the contract of warranty. But we are of opinion, in the language of Mr. Justice Metcalf, in Douglass Axe Mnfg. Co. v. Gardner, 10 Cush. 88, (a case which more than covers the case at bar,) that, under such circumstances, “the buyer has, if not a double remedy, at least a choice of remedies, and may either return the property within a reasonable time, or keep it, and maintain an action for breach of the warranty.” There is some authority to the contrary of this view; but we find nothing so satisfactory as the case cited. If it be admitted that, without the stipulation, the defendants would have had no right of return, it is difficult, independent of authority, to see why a stipulation that a party may have a remedy not given by law should be held to deprive him of one clearly given by law, in the absence of any agreement to that effect. It affirmatively appearing in the record, that the court below refused the amendment asked for by defendant, not m the exercise of its discretion, but upon a view of the law inconsistent with the views above expressed, it follows that the order denying a new trial must be reversed. Note. — See Day v. Pool, 52 N. Y. 416.